| March 2010 Decisions of the Fourteenth Court of Appeals in Houston [14th Dist.] 2010) HOUSTON OPINIONS |
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Opinion Release Dates: March 3, 4, 9, 11, 16, 18, 23, 25, 30, 2010 MARCH 2010 DECISIONS WITH LINKS TO APPELLATE OPINIONS IN CIVIL CASES DETAILS FOR CASES DECIDED BY THE FOURTEENTH COURT OF APPEALS IN MARCH 2010 Released Opinions March 30, 2010 Civil Causes Decided: Big Dog Logistics, Inc. v. Strategic Impact Corp. (Tex.App.- Houston [14th Dist.] Mar. 30, 2010)(Seymore) AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Seymore Before Price, Chief Justice Hedges, Justice Seymore 14-07-00892-CV BIG DOG LOGISTICS, INC., BIG DOG CAPITAL CORP., BIG DOG EXPEDITING, INC., BIG DOG AIR FREIGHT, BIG DOG LOGISTICS I, OL.P., BIG DOG LOGISTICES, L.L.P., FROGFIRE TECHNOLOGIES, INC., BIG DOG GROUP, INC., DANIEL KIRK AND KIRK LANE v. Strategic Impact Corporation, Kim O. Brasch, and Maria C. Floudas Appeal from 280th District Court of Harris County Garza v. Terra Nova Insurance Co., Ltd. (Tex.App.- Houston [14th Dist.] Mar. 30, 2010)(Brown) AFFIRMED: Opinion by Justice Brown Before Justices Brock Yates, Seymore and Brown 14-08-00653-CV Joe M. Garza, Pay Phone Owners Legal Fund, and Ernest Bustos v. Terra Nova Insurance Company, Ltd., Guaranty National Insurance Company, Burlington Insurance Company, and United national Insurance Company Appeal from 434th Judicial District Court of Fort Bend County Jaramillo v. Portfolio Acquisitions, LLC (Tex.App.- Houston [14th Dist.] Mar. 30, 2010)(Anderson) AFFIRMED: Opinion by Justice Anderson Before Justices Anderson, Mirabal and Boyce 14-08-00939-CV Jesus Jaramillo, Sr. v. Portfolio Acquisitions, LLC Appeal from County Court at Law No 1 of Fort Bend County Wasserman v. Gugel (Tex.App.- Houston [14th Dist.] Mar. 30, 2010)(Anderson) AFFIRMED: Opinion by Justice Anderson Before Justices Anderson, Mirabal and Boyce 14-09-00450-CV Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel Appeal from 151st District Court of Harris County Lindsey v. RGK Consultants, LLC (Tex.App.- Houston [14th Dist.] Mar. 30, 2010)(Boyce) AFFIRMED: Opinion by Justice Boyce Before Justices Frost, Boyce and Sullivan 14-09-00855-CV Gareth Lindsey v. RGK Consultants, LLC Appeal from 56th District Court of Galveston County Criminal Causes Decided: AFFIRMED: Opinion by Justice Frost Before Justices Frost, Boyce and Sullivan 14-09-00027-CR William Edward Dreyer v. The State of Texas Appeal from 284th District Court of Montgomery County Concurring Opinion by Justice Sullivan AFFIRMED: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00076-CR Bill Collins a/k/a Willie Otis Collins v. The State of Texas Appeal from 54th District Court of McLennan County AFFIRMED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00662-CR March 25, 2010 Civil Causes Decided: De Acetis v. Whitley (Tex.App.- Houston [14th.] Mar. 25, 2010)(Mirabal) (real estate dispute stemming from divorce, enforcement of property division by contempt, res judicata based on divorce proceeding) AFFIRMED: Opinion by Justice Mirabal Before Justices Mirabal, Boyce and Sullivan 14-08-00429-CV Dennis C. De Acetis v. Marianne Whitley, Michael W. DeAcetis, James M. Gary, Kimberly C. Gary, and Martha C. Fonke Appeal from 239th District Court of Brazoria County Trial Court Judge: Patrick Edward Sebesta M7 Capital LLC. v. Miller (Tex.App.- Houston [14th.] Mar. 25, 2010)(Christopher) (option contract, existence of contract, existence of valid contract, performance) REVERSED AND REMANDED: Opinion by Justice Christopher Before Justices Anderson, Boyce and Christopher 14-08-00951-CV M7 Capital LLC v. Theodore B. Miller, Jr. a/k/a Ted B. Miller, Jr. Appeal from 11th District Court of Harris County Trial Court Judge: Mark Davidson Ellis v. Eadie (Tex.App.- Houston [14th.] Mar. 25, 2010)(per curiam) (agreed child support review order, no timely motion for new trial filed) AFFIRMED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00560-CV Joseph Ellis v. Tamiko Eadie Appeal from 310th District Court of Harris County Trial Court Judge: Lisa A. Millard Lambertz v. Robinson (HCAD) (Tex.App.- Houston [14th.] Mar. 25, 2010)(per curiam) (tax protest appeal and due process, administrative remedies exclusive remedy) AFFIRMED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00650-CV Robert W. Lambertz v. Jim Robinson and Oliver Esch Appeal from 333rd District Court of Harris County Trial Court Judge: Joseph ("Tad") Halbach DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-09-00726-CV Myrtle Jackson v. Houston Housing Authority Appeal from Co Civil Ct at Law No 4 of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00899-CV Primeco Auto Towing, LLC v. Cintas Corporation Appeal from Co Civil Ct at Law No 3 of Harris County Douglas v. Ingersoll (Tex.App.- Houston [14th.] Mar. 25, 2010)(per curiam) (indigency contest, IFP status should have been granted) REVERSED AND RENDERED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00930-CV RALPH O. DOUGLAS v. ELISE SELMA INGERSOLL Appeal from 270th District Court of Harris County DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-09-01056-CV Tefera Tsegaye v. Ruth Messele Appeal from 310th District Court of Harris County DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-10-00060-CV Cau Chin and Truc Lam Mediation Center, Inc. v. T. H. United, Inc. Appeal from 234th District Court of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-10-00157-CV Texas Department of Public Safety v. Randall Craig Lewis Appeal from 506th District Court of Waller County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-10-00179-CV GULF MARINE INSTITUTE OF TECHNOLOGY, INC., AND JOHN D. ERICSSON v. Phillip Lee Appeal from County Court at Law No 1 of Galveston County Criminal Causes Decided: AFFIRMED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-08-00388-CR Johnnie Thompson, Jr. v. The State of Texas Appeal from 300th District Court of Brazoria County AFFIRMED: Opinion by Justice Brown Before Justices Brock Yates, Seymore and Brown 14-08-00524-CR Christopher Lee Orsag v. The State of Texas Appeal from 400th District Court of Fort Bend County AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00964-CR Ramiro Martinez v. The State of Texas Appeal from 338th District Court of Harris County AFFIRMED: Opinion by Justice Boyce Before Justices Frost, Boyce and Sullivan 14-08-01143-CR Michael Ray Deyon v. The State of Texas Appeal from 212th District Court of Galveston County AFFIRMED: Opinion by Justice Brown Before Justices Brock Yates, Seymore and Brown 14-09-00017-CR Ruben Carlos Cuellar-Romo v. The State of Texas Appeal from 230th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00431-CR Brandon Michael Campbell v. The State of Texas Appeal from 232nd District Court of Harris County REVERSED AND REMANDED: Opinion by Justice Boyce Before Justices Frost, Boyce and Sullivan 14-09-00834-CR The State of Texas v. Scott Gerard Karasek Appeal from 177th District Court of Harris County DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-10-00135-CR JOSEPH OSCAR NOWALK v. The State of Texas Appeal from 182nd District Court of Harris County March 23, 2010 Civil Causes Decided: McCloskey v. McCloskey (Tex.App.- Houston [14th Dist.] Mar. 23, 2010)(Frost) (appeal from garnishment order, subsequent appeal, divorce and SAPCR case, characterization of attorney's fees as child support in divorce case, bankruptcy stay) In seven issues, Chris, the garnishment debtor, contends that (1) the trial court abused its discretion by not complying with the mandate of the appellate court, (2) the garnishment action violated the automatic bankruptcy stay, (3) the garnishment action is improper because it is the second action for the same fees, (4) the manner in which Chris’s assets were taken from two separate-property accounts was improper, (5) this court should stay execution of judgment until this court “rules on the characterization of attorney fees as child support,”(6) Chris was improperly divested of his assets, and (7) the judgment is manifestly unjust. We affirm. AFFIRMED: Opinion by Justice Frost Before Justices Brock Yates, Frost and Brown 14-08-00365-CV Christopher J. McCloskey v. Anne Miriam McCloskey, Michael A. Craig, and Fidelity Investments D/B/A National Financial Services, L.L.C. Appeal from 387th District Court of Fort Bend County Trial Court Judge: Robert J. Kern Miller v. City of Houston [and its police chief] (Tex.App.- Houston [14th Dist.] Mar. 23, 2010)(Mirabal) (city civil service, disciplinary proceeding appeal, plea to the jurisdiction)(hearing examiner was not authorized to impose a suspension of more than fifteen days) REVERSED AND REMANDED: Opinion by Justice Mirabal Before Chief Justice Hedges, Justices Anderson and Mirabal 14-08-01018-CV Lt. Ken Miller v. City of Houston and Harold Hurtt Appeal from 215th District Court of Harris County Trial Court Judge: Levi James Benton In re Frazier (Tex.App.- Houston [14th Dist.] Mar. 23, 2010) (per curiam denial of mandamus in CPS child removal case) MOTION OR WRIT DENIED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-10-00176-CV In Re Marshall James Frazier Appeal from 314th District Court of Harris County Trial Court Judge: John Phillips Criminal Causes Decided: AFFIRMED: Opinion by Justice Frost Before Justices Hudson, Frost and Brown 14-08-00977-CR Thomas Joseph Gamelin v. The State of Texas Appeal from 339th District Court of Harris County AFFIRMED: Opinion by Justice Brown Before Justices Brock Yates, Seymore and Brown 14-09-00110-CR Frederick Nelson Davis v. The State of Texas Appeal from 184th District Court of Harris County AFFIRMED: Opinion by Justice Brown Before Justices Brock Yates, Seymore and Brown 14-09-00113-CR Frederick Nelson Davis v. The State of Texas Appeal from 184th District Court of Harris County March 18, 2010 Civil Causes Decided: DISMISSED: Per Curiam (dismissed after bankruptcy) Before Chief Justice Hedges, Justices Anderson and Christopher 14-05-00028-CV Alma Griggs v. Georgia Lee Griggs Johnson Appeal from Co Ct at Law No 3 & Probate Ct of Brazoria County DISMISSED: Per Curiam (dismissed after voluntary bankruptcy) Before Chief Justice Hedges, Justices Anderson and Christopher 14-05-00553-CV K & K VINTAGE MOTORCARS, L.C. AND KEN DAUGHERTY v. Mel Jacobs Appeal from 80th District Court of Harris County Haines v. Sheeley (Tex.App.- Houston [14th Dist.] Mar. 18, 2010)(per curiam) (inmate litigation, Chapter 14 of CPRC) Appellant Rodney Steve Haines, appeals the dismissal of his suit under Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (Vernon 2002). In one issue, he asserts that the trial court abused its discretion in dismissing his suit. We affirm. AFFIRMED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00064-CV Rodney Steve Haines v. Mary K. Sheeley, Correctional Warden Appeal from 87th District Court of Freestone County [Name of trial judge not shown on appellate docket] Carlson v. TDFPS (Tex.App.- Houston [14th Dist.] Mar. 18, 2010)(Christopher) (termination of parental rights, race issue raised and overruled) AFFIRMED: Opinion by Justice Christopher Before Justices Anderson, Boyce and Christopher 14-09-00133-CV CHERYL CARLSON v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES Appeal from 300th District Court of Brazoria County Trial Court Judge: K. RANDALL HUFSTETLER MOTION OR WRIT DENIED: Per Curiam Before Justices Frost, Seymore and Sullivan 14-10-00238-CV In Re Margaret Castro Appeal from 308th District Court of Harris County Criminal Causes Decided: AFFIRMED: Opinion by Justice Seymore Before Justices Brock Yates, Seymore and Brown 14-08-00773-CR Lionel Newman v. The State of Texas Appeal from 230th District Court of Harris County March 16, 2010 Civil Causes Decided: Gay v. Dummar (pdf)(Tex.App.- Houston [14th Dist.] Mar. 16, 2010)(Mirabal) In this probate case, appellants Frank William Gay, II and Robert Gay[1] contend, among other things, that the trial court erred by refusing to appoint them as the independent co-executors of the estate of their father, Frank William Gay (“Mr. Gay”), as provided in their father’s will. We reverse and remand. REVERSED AND REMANDED: Opinion by Justice Mirabal Before Justices Anderson, Mirabal and Boyce 14-08-00699-CV Frank William Gay, II and Robert C. Gay v. Melvin Dummar & Clifton A. Goodwin Appeal from Probate Court No 3 of Harris County Trial Court Judge: RORY ROBERT OLSEN Davis v. Friedson (pdf)(Tex.App.- Houston [14th Dist.] Mar. 16, 2010)(Subst. op. by Boyce) This case arises from a dispute involving a real estate broker’s commission. Scott Friedson and NIP Real Estate L.L.C. d/b/a National Income Property (“National Income Property”) challenge the trial court’s (1) order granting James Davis’s motion for partial summary judgment on Friedson’s breach of contract and fraud claims; and (2) denial of Friedson’s motion for continuance.[1] Davis appeals the trial court’s (1) dismissal of certain counterclaims without prejudice for want of prosecution;[2] and (2) denial of his motion to reinstate. We dismiss in part; affirm in part; and reverse and remand in part. AFFIRMED IN PART & REVERSED & DISMISSED IN PART: Opinion by Justice Boyce Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-01098-CV James W. Davis, Thomas B. Wilkinson, IV KET Enterprises, Incorporated, and Melissa Jones v. Scott Friedson ("Friedson") Appeal from 80th District Court of Harris County Trial Court Judge: LYNN M. BRADSHAW-HULL Reardon, MD v. Nelson (pdf)(Tex.App.- Houston [14th Dist.] Mar. 16, 2010)(Seymore) Appellant, Michael J. Reardon, M.D. (“Dr. Reardon”), appeals the trial court’s order denying his motion to dismiss appellee, Royce Nelson’s (“Nelson”), medical- malpractice suit on the ground that Nelson’s expert, John F. Seaworth, M. D. (“Dr. Seaworth”), provided an inadequate report. In three issues, Dr. Reardon contends the trial court abused its discretion by (1) finding Dr. Seaworth was “qualified to provide opinions on how the alleged breach of the standard of care caused [Nelson’s] damages,” (2) determining “that the causation opinion of [Nelson’s] cardiology expert was linked to facts in the expert’s report, and not just speculation and assumptions,” and (3) “failing to dismiss all claims regarding the standard of care during the performance of a coronary artery bypass surgery.” Because all dispositive issues are settled in Texas law, we issue this memorandum opinion and affirm the trial court’s order. See Tex. R. App. P. 47.4. AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00532-CV Michael J. Reardon, M.D. v. Royce Nelson Appeal from 334th District Court of Harris County Trial Court Judge: Sharon McCally UTMB-Galveston v. Nightingale (Tex.App.- Houston [14th Dist.] Mar. 16, 2010)(Hedges) This is a healthcare liability case governed by chapter 74 of the Texas Civil Practice and Remedies Code.[1] Appellant, University of Texas Medical Branch - Galveston (“UTMB”), filed this interlocutory appeal to challenge the trial court’s order denying its motion to dismiss based on appellee’s alleged failure to file a sufficient expert report. We affirm. AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Brock Yates and Seymore 14-09-00538-CV University of Texas Medical Branch - Galveston v. James Nightingale, Individually and as Independent Executor of the Estate of Karen Nightingale, Deceased Appeal from Probate Court of Galveston County Trial Court Judge: Gladys Burwell Cypress Forest PUD v. Kleinwood MUD (pdf)(Tex.App.- Houston [14th Dist.] Mar. 16, 2010)(Hedges) (annexation-related dispute, takings claim, eminent domain, vested property interest) This case involves a municipal utility district’s allegation that rights acquired under an annexation agreement were appropriated by another utility district in violation of the takings clause under article I, section 17 of the Texas Constitution. Appellee, Kleinwood Municipal Utility District (“Kleinwood”), filed suit against appellant, Cypress Forest Public Utility District (“Cypress Forest”), claiming an unconstitutional taking of rights created under an annexation agreement. Kleinwood answered the lawsuit by filing a plea to the jurisdiction. The trial court denied the plea, and in turn, Cypress Forest brings this interlocutory appeal. In two issues, Cypress Forest complains that the trial court erred in denying its plea to the jurisdiction. We reverse and render. REVERSED AND RENDERED: Opinion by Chief Justice Hedges, Concurring Opinion by Justice Mirabal Before Chief Justice Hedges, Justices Anderson and Mirabal 14-09-00679-CV Cypress Forest Public Utility District v. Kleinwood Municipal Utility District Appeal from 215th District Court of Harris County Trial Court Judge: Steven Kirkland Concurrence by Mirabal with Note (no separate opinion) Criminal Causes Decided: AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00787-CR Dan Hernandez Jr. v. The State of Texas Appeal from 177th District Court of Harris County AFFIRMED: Opinion by Justice Seymore Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00787-CR Dan Hernandez Jr. v. The State of Texas Appeal from 177th District Court of Harris County AFFIRMED: Opinion by Justice Brown Before Justices Brock Yates, Brown and Boyce 14-08-00926-CR Donald Gill Delauder v. The State of Texas Appeal from 268th District Court of Fort Bend County AFFIRMED: Opinion by Justice Brown Before Justices Brock Yates, Frost and Brown 14-08-01088-CR D'Andre Demond Davis v. The State of Texas Appeal from 149th District Court of Brazoria County AFFIRMED: Opinion by Justice Brown Before Justices Brock Yates, Frost and Brown 14-08-01178-CR Latoya Nicole Colvin v. The State of Texas Appeal from 228th District Court of Harris County MOTION OR WRIT DENIED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-10-00130-CR In Re Marshall A. Washington Appeal from 248th District Court of Harris County March 11, 2010 Civil Causes Decided: Hatfiled v. Solomon (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(Boyce) (no harmful jury charge error, costs deleted from judgment) AFFIRMED AS MODIFIED: Opinion by Justice Boyce Before Chief Justice Hedges, Justices Brock Yates and Boyce 14-08-00487-CV Ronald C. Hatfield v. Glenn J. Solomon Appeal from 127th District Court of Harris County Trial Court Judge: Sharolyn P. Wood Sweeney v. Dyncorp International LLC (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(Brown) (workforce commission appeal, denial of bonus claim) Appellant Patrick N. Sweeney appeals the trial court’s decision to uphold the Texas Workforce Commission’s ruling denying Sweeney’s claim of an unpaid bonus. Sweeney argues that (1) there was not substantial evidence to support the Texas Workforce Commission’s conclusion, and (2) the trial court erred by allowing appellee Dyncorp International, LLC to invoke a state-secrets privilege during Sweeney’s cross examination of appellee’s sole witness. We affirm. AFFIRMED: Opinion by Justice Brown Before Justices Brock Yates, Seymore and Brown 14-08-00923-CV Patrick N. Sweeney v. Dyncorp International, LLC Appeal from County Civil Court at Law No 1 of Harris County Trial Court Judge: R. Jack Cagle Davis v. Friedson (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(Boyce) (elements of contract, breach of contract, motion for continuance, DWOP of counterclaim) This case arises from a dispute involving a real estate broker’s commission. Scott Friedson challenges the trial court’s (1) order granting James Davis’s motion for partial summary judgment on Friedson’s breach of contract and fraud claims; and (2) denial of Friedson’s motion for continuance. Davis appeals the trial court’s (1) dismissal of certain counterclaims without prejudice for want of prosecution;[1] and (2) denial of his motion to reinstate. We dismiss in part; affirm in part; and reverse and remand in part. AFFIRMED IN PART & REVERSED & DISMISSED IN PART: Opinion by Justice Boyce Before Chief Justice Hedges, Justices Anderson and Boyce 14-08-01098-CV James W. Davis, Thomas B. Wilkinson, IV KET Enterprises, Incorporated, and Melissa Jones v. Scott Friedson ("Friedson") Appeal from 80th District Court of Harris County Trial Court Judge: Lynn M. Bradshaw-Hull Hughes and Bay Architects, Inc. v. Bay Area Montessori House, Inc. (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(subst memo op. by Frost)(attempted interlocutory appeal dismissed, not authorized at the time by statute) This interlocutory appeal arises out of an architecture-malpractice case. An architect and architectural firm sought dismissal of a school’s claims against them on the basis that the claimant failed to comply with the certificate-of-merit statute. The trial court denied their motion to dismiss without stating the basis for the denial. In a single issue, the architect and architectural firm assert that the trial court incorrectly applied section 150.002 of the Texas Civil Practice and Remedies Code because the affidavit filed by the claimant allegedly did not contain a mandatory element. Because the claimant’s cause of action accrued before the legislature amended the certificate-of-merit statute to permit an interlocutory appeal from the denial of a motion to dismiss, this court lacks jurisdiction to consider this appeal. DISMISSED: Opinion by Justice Frost Before Justices Brock Yates, Frost and Brown 14-09-00410-CV Brad Hughes and Bay Architects, Inc. ("BAI") v. Bay Area Montessori House, Inc. Appeal from 295th District Court of Harris County Trial Court Judge: Tracy Kee Christopher (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(nonpayment) DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-01003-CV In the Interest of N.S.S., a Child Appeal from 314th District Court of Harris County (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(record not paid for) DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-01010-CV In the Matter of W.M.M. Appeal from 314th District Court of Harris County (Tex.App.- Houston [14th Dist.] Mar. 11, 2010)(dismissed by appellant) DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-10-00121-CV Daniel Ray Marling v. Tuong Hoa Marling Appeal from 306th District Court of Galveston County Trial Court Judge: Janis Louise Yarbrough Criminal Causes Decided: AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Frost and Brown 14-08-00839-CR Hugo Paul Ayala v. The State of Texas Appeal from 183rd District Court of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00676-CR KELECHI UWALAKA v. The State of Texas Appeal from 176th District Court of Harris County DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-10-00099-CR VELMA JEAN LEMON v. The State of Texas Appeal from 177th District Court of Harris County DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-10-00172-CR REYNALDO ALEXIS SARAVIA v. The State of Texas Appeal from 23rd District Court of Brazoria County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-10-00185-CR STEPHEN HORNE v. The State of Texas Appeal from 248th District Court of Harris County DISMISSED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-10-00207-CR In Re Edward R. Newsome v. The State of Texas Appeal from 179th District Court of Harris County March 9, 2010 Civil Causes Decided: None Criminal Causes Decided: AFFIRMED: Opinion by Justice Sullivan Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00952-CR Timothy Dwayne Anderson v. The State of Texas Appeal from 209th District Court of Harris County AFFIRMED: Opinion by Justice Boyce Before Justices Frost, Boyce and Sullivan 14-08-00984-CR Andrew Fares Kfouri v. The State of Texas Appeal from 180th District Court of Harris County AFFIRMED: Opinion by Justice Sullivan Before Justices Frost, Boyce and Sullivan 14-09-00153-CR Jarett Wade Petroski v. The State of Texas Appeal from Co Crim Ct at Law No 14 of Harris County March 4, 2010 Civil Causes Decided: Pham v. Letney (Tex.App.- Houston [14th Dist.] March 4, 2010)(Hedges) (arbitration agreement in legal services contract between lawyer and client enforced by mandamus, interlocutory appeal of order denying motion to compel arbitration dismissed, FAA applied, TAA would be preempted) INTERLOCUTORY APPEAL DISMISSED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Justice Sullivan 14-08-01153-CV Steven Tuan Pham v. Shelly Letney Appeal from 215th District Court of Harris County Trial Court Judge: Levi James Benton Dissenting Opinion by Justice Seymore in Pham v. Letney (In consideration of the unique relationship between attorney and client, Justice Seymore writes dissenting opinion to express his concern about mandatory arbitration provisions in attorney-client agreements) In re Tuam Pham (pdf) (Tex.App.- Houston [14th Dist.] March 4, 2010)(Hedges) MOTION OR WRIT GRANTED: Opinion by Chief Justice Adele Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-09-00387-CV In Re Steven Tuam Pham Appeal from 215th District Court of Harris County Dissenting Opinion by Justice Seymore In re Tuam Pham (pdf) Woodway Drive LLC v. HCAD (Tex.App.- Houston [14th Dist.] March 4, 2010)(per curiam) (owner must file property tax protext judicial review suit; dismissal for want of jurisdiction affirmed; no substitution of new owner under Rule 28) AFFIRMED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00524-CV Woodway Drive LLC aka First Reliance Metering LP v. Harris County Appraisal District Appeal from 189th District Court of Harris County Trial Court Judge: William R. Burke JR. EMS USA, Inc. v. Shary (Tex.App.- Houston [14th Dist.] March 4, 2010)(Boyce) (temporary injunction appeal, elements requirements for temporary injunction, noncompete agreements) We conclude that the trial court abused its discretion when it denied EMS’s application for a temporary injunction without hearing testimony regarding whether the non-compete covenant was (1) “ancillary to or part of” the personal services contract; and (2) a reasonable restraint. REVERSED AND REMANDED: Opinion by Justice Bill Boyce Before Justices Frost, Boyce and Sullivan 14-09-00543-CV EMS USA, Inc v. Robert Shary Appeal from 334th District Court of Harris County Trial Court Judge: Sharon McCally Scott Plaza Associates Ltd v. HCAD (Tex.App.- Houston [14th Dist.] March 4, 2010)(per curiam) (HCAD property tax appeal, plaintiff did not own property and did not have standing to bring judicial review suit of property tax appraisal, substitution under rule 28 not available, order granting plea to the jurisdiction affirmed) Steward did not own the property as of January 1, 2007. Steward did not claim rights to protest under the Property Tax Code as either a lessee or an agent. Therefore, Steward lacked standing to pursue judicial review as a “party who appeals” under section 42.21(a). The record does not reflect that Scott Plaza pursued its right of protest as the actual property owner. According to the record, Scott Plaza was not named as a party until May 22, 2009 when Steward filed a first amended original petition. Therefore, the Review Board had not determined a protest by the actual property owner, Scott Plaza, upon which Scott Plaza could premise a right to appeal as the property owner. AFFIRMED: Per Curiam Before Justices Brock Yates, Anderson and Seymore 14-09-00707-CV Scott Plaza Associates LTD, commonly known as J & Friedman S. Steward v. Harris County Appraisal District Appeal from 55th District Court of Harris County (trial judge not identified on appellate docket) Hendrix v. Bryant (pdf) (Tex.App.- Houston [14th Dist.] Mar. 4, 2010)(per curiam) (untimely notice of appeal; no motion for extension for additional 15 days) DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-09-00897-CV Jake Hendrix v. Cheryl Bryant Appeal from 247th District Court of Harris County Trial Court Judge: Judge Bonnie Crane Hellums Criminal Causes Decided: AFFIRMED: Opinion by Justice Sullivan Before Chief Justice Hedges, Justices Seymore and Sullivan 14-07-00715-CR Karl Eugene Jones v. The State of Texas Appeal from 176th District Court of Harris County AFFIRMED: Opinion by Justice Brown Before Justices Frost, Brown and Boyce 14-08-00971-CR Laraun Omar Henderson v. The State of Texas Appeal from 183rd District Court of Harris County AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Anderson and Mirabal 14-08-01048-CR Dana Gerard Adams v. The State of Texas Appeal from 337th District Court of Harris County AFFIRMED: Opinion by Justice Boyce Before Justices Anderson, Mirabal and Boyce 14-08-01053-CR Christopher Lynn Cox v. The State of Texas Appeal from 351st District Court of Harris County AFFIRMED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00040-CR Andre Roberts v. The State of Texas Appeal from 252nd District Court of Jefferson County AFFIRMED: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00079-CR George William Stone Jr. v. The State of Texas Appeal from 400th District Court of Fort Bend County DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-09-00189-CR Richard Moreno v. The State of Texas Appeal from 184th District Court of Harris County AFFIRMED: Per Curiam Before Justices Brock Yates, Seymore and Brown 14-09-00437-CR Malcolm Jamal Isler v. The State of Texas Appeal from 338th District Court of Harris County DISMISSED: Per Curiam Before Justices Frost, Boyce and Sullivan 14-10-00128-CR DAUNDRE HARRIS v. The State of Texas Appeal from 230th District Court of Harris County Released Opinion March 3, 2010 Civil Causes Decided: In Re Rapid Settlements, Ltd (Tex.App.- Houston [14th Dist.] Mar. 3, 2010)(per curiam denial of mandamus against sanctions order and discovery order) relator asked this court to compel the Honorable Patricia Hancock, presiding judge of the 113th District Court of Harris County, to set aside her February 22, 2010, order compelling the deposition of relator’s corporate representative, compelling the production of documents, and awarding sanctions, MOTION OR WRIT DENIED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-10-00204-CV In Re Rapid Settlements, Ltd Appeal from 113th District Court of Harris County Trial Court Judge: Patricia Ann Hancock Criminal Causes Decided: March 2, 2010 Civil Causes Decided: WTG Gas Processing, LP v. ConocoPhillips Company (pdf) (Tex.App.- Houston [14th Dist.] Mar. 2, 2010) (Corrected superseding opinion by Seymore) (cross appeals, breach of contract and tortious- interference claims, no contract formed, statute of frauds, summary judgment affirmed) AFFIRMED: Opinion by Justice Charles Seymore Before Chief Justice Hedges, Justices Anderson and Seymore 14-08-00019-CV WTG Gas Processing, LP v. ConocoPhillips Company, Targa Field Services, LLC, Targa Resources Texas GP LLC, Targa Resouces, Inc., Targa Texas Field Services, LP and Warburg Pincus, LLC Appeal from 333rd District Court of Harris County Trial Court Judge: Joseph J. Halbach Peredo v. Grupo Cuadro, S.A. De C.V. (Tex.App.- Houston [14th Dist.] Mar 2. 2010)(Anderson) (denial of special appearance was error, severance and dismissal for want of in personal jurisdiction ordered) A Mexican corporation brought suit in Harris County against a vendor and two of the vendors’ Texas employees. The vendor counterclaimed against the Mexican corporation’s president, who resides in California, and the trial court denied the nonresident counterdefendant’s special appearance. Because the evidence does not support the trial court’s exercise of personal jurisdiction over the nonresident, we reverse and remand. REVERSED AND REMANDED: Opinion by Justice John S. Anderson Before Justices Anderson and Brown 14-08-01032-CV Miguel Peredo v. Grupo Cuadro, S.A. de C.V. Appeal from 234th District Court of Harris County Trial Court Judge: Reese Rondon Criminal Causes Decided: AFFIRMED: Opinion by Justice Brown Before Justices Brock Yates, Frost and Brown 14-08-00479-CR Ralph Courtney Bell JR. v. The State of Texas Appeal from 212th District Court of Galveston County AFFIRMED: Opinion by Justice Sullivan Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-01000-CR Justin Ross Deshayes v. The State of Texas Appeal from 263rd District Court of Harris County REVERSED AND REMANDED: Opinion by Justice Anderson Before Chief Justice Hedges, Justices Anderson and Christopher 14-09-00121-CR Carl Edward Rubit v. The State of Texas Appeal from 263rd District Court of Harris County MOTION OR WRIT DENIED: Per Curiam Before Chief Justice Hedges, Justices Anderson and Christopher 14-10-00144-CR In Re Eric David Lofland v. The State of Texas Appeal from 184th District Court of Harris County . |
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RECENT BLOG POSTS ON HOUSTON APPEALS COURT OPINIONS Property tax protester must have standing to bring tax appeal, judicial review suit Appeal from partial summary judgment in bill-of-review suit not final appealable order No tolling of statute of limitations based on brief absences of the defendant from the state Landlord required to mitigate damages in breach of lease cases Carrier loses workers compensation appeal over injured worker's impairment rating Wrongful termination of employment: Can Sabine Pilot claim be brought against supervisor individually Right to nonsuit vindicated by mandamus Two-step in suit to partition land explained Settlement agreement enforced APPELLATE PROCEDURE Another appeal dismissed in the absence of a final appealable order or judgment Texas court may not issue advisory opinions - Temporary injunction appeal dismissed Mistrial order not immediately appealable CIVIL PROCEDURE - TRCP ISSUES ON APPEAL Right to jury trial grounded in the constitution, but subject to waiver Spoliation no reason to overturn summary judgment for defendant in premises liability suit against grocery store Plea to the jurisdiction explained Oral presentment of claim sufficient for recovery of attorney's fees What if the motion for new trial is not sworn? Insufficient notice of summary judgment hearing complaint requires specific steps to preserve error for appeal FAMILY LAW CASES | APPEALS FROM DIVORCE COURTS Property division in divorce from foreign tag-along spouse affirmed - gender roles reversed No community property - Nothing for the divorce court to divided Protective order against ex-girlfriend affirmed |
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